Fatal accidents are usually preventable, which leads to questions of responsibility and criminal liability. Here, Guy Bastable and Tom McNeill seek to explain those occasions when organisations and individuals will be found criminally liable, for which offences and with what sanction.
The legal landscape applicable to fatal accidents has been transformed by both the Corporate Manslaughter and Corporate Homicide Act 2007 and the Health and Safety (Offences) Act 2008, and more recently the Sentencing Council’s definitive guideline Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences, which together have ushered in a new era of criminal liability for organisations, directors and employees.
An investigation following a fatal accident is now undertaken with a view to prosecuting:
*an organisation for corporate manslaughter
*an organisation for breaching the Health and Safety at Work etc Act 1974
*an individual for common law gross negligence manslaughter
*a senior officer for secondary liability in relation to any breach of the Health and Safety at Work etc Act 1974 (Section 37) by the organisation
*an employee for any breach of the Health and Safety at Work etc Act 1974 (Section 7) for failing to take reasonable care of others
Corporate manslaughter, gross negligence manslaughter and Health and Safety offences are all criminal offences that are prosecuted in the criminal courts and attract significant penalties (ie very high fines or imprisonment).
Detailing the offences
The Corporate Manslaughter and Corporate Homicide Act 2007 came into force in April 2008. Previously, it had been notoriously difficult to convict large companies of the common law offence of gross negligence manslaughter (which, until the Act, had been commonly referred to as ‘corporate manslaughter’), although there had been a number of convictions of smaller companies.
The Act removes the necessity under the old law to identify and establish the guilt of a ‘directing mind’ (a senior individual who could be said to embody the company in his/her actions and decisions). In a large or medium-sized organisation, such an individual is often far removed from the events surrounding the death, making establishing his/her guilt for gross negligence manslaughter unlikely.
Instead, the Act concentrates on the way in which the organisation’s activities were managed or organised – commonly referred to as a ‘management failure’ – and whether that caused the death (although it need not be the sole or principal cause of death, it must only have contributed significantly) and was a gross breach of a relevant Duty of Care.
Further, the way in which its activities were managed or organised by its senior management must be a substantial element of that breach. In addition, unlike the previous common law offence, significantly the Act allows the aggregation of failings by a number of individuals.
These changes have certainly made it easier to prosecute organisations for corporate manslaughter. There were only eight successful prosecutions under the common law ‘corporate manslaughter’ offence between 1994 and 2009, all of them affecting very small organisations. Since the Act was enforced, there have been 26 convictions. Only one, however, has been of a ‘large organisation’ (ie one with a turnover of £50 million or more).
The defendant in that case, namely CAV Aerospace Ltd, had 460 employees and a £73 million turnover and, unusually, senior management had received and not acted upon written warnings of the precise risk that led to the subsequent fatality. However, for large organisations the unlikelihood that any management failure attributable to senior management would be sufficiently gross as to be criminal means that successful corporate manslaughter prosecutions of large organisations are likely to remain exceptional.
This is well demonstrated by the misconceived prosecution of the Maidstone and Tunbridge Wells NHS Trust, the largest organisation to date prosecuted for corporate manslaughter under the Act. A mother died following a Caesarean section while under the care of two qualified and experienced anaesthetists. The Crown alleged manslaughter against both anaesthetists. Its case against the Trust, at its highest, was that there were failings in its system of appointment and appraisal of the anaesthetists.
In dismissing the case, the presiding Judge found that any such failings by the Trust, even if proven, were “nowhere near the sufficient gravity required to categorise their failure as criminal”.
The Act specifically doesn’t apply to individuals and expressly states that an individual cannot be guilty of aiding, abetting, counselling or procuring corporate manslaughter. However, although the Act abolishes the common law offence of gross negligence manslaughter so far as it applies to organisations, an individual can still be prosecuted and imprisoned on conviction for gross negligence manslaughter, as well as a number of Health and Safety offences.
Breaches of the Act
Irrespective of the applicability of corporate manslaughter, fatal accidents ordinarily involve the potential breach of the Health and Safety at Work etc Act 1974. Indeed, the Health and Safety at Work etc Act 1974 places a number of general duties on employers and others, the breach of which constitutes a criminal offence.
So far as organisations are concerned, the most significant duties are those contained in Sections 2 and 3 of the Health and Safety at Work etc Act 1974. Broadly speaking, Section 2 sets out the duty on employer organisations to ensure, so far as is reasonably practicable, the health, safety and welfare at work of employees. Similarly, Section 3 sets out the duty to ensure, so far as is reasonably practicable, that non-employees are not exposed to risks to their health or safety arising from its undertaking.
It’s important to note that the employer’s duties are personal and non-delegable, meaning that employers can delegate the performance of the duty to others, whether employees or contractors, but not the responsibility for its non-performance.
By virtue of Section 33, failing to discharge either of these duties is a criminal offence of ‘strict liability’ (ie requiring no mental element such as intention, knowledge or negligence). In addition, following the decision of the House of Lords in R versus Chargot (2008) 2 All ER 1077, a person’s death is strong evidence that there was exposure to risk such that the burden of proof effectively shifts to the defence. the defendant organisation has to prove that it took all reasonably practicable steps to ensure the Health and Safety of the deceased.
The extent of these duties is important to emphasise. Even if an organisation has devised a safe system of work, any failure to operate that system, whether by an employee (including the deceased) or a contractor, may place the employer in breach of its duty. Reasonably practicable steps will include not only instructing employees on safety procedures, but also ensuring that they’re followed, such as by reasonable supervision and monitoring.
In addition, Section 37 of the Health and Safety at Work etc Act 1974 creates secondary liability for senior officers arising out of the organisation’s conduct. If either of the above Health and Safety offences is committed by an organisation with the consent or connivance of (or is attributable to any neglect on the part of) a senior officer of the organisation, that person can also be prosecuted for the offence.
Finally, Section 7 places a duty on employees to take reasonable care for the Health and Safety of others who may be affected by their acts or omissions. Again, by virtue of Section 33, failure to do so is a criminal offence.
Examining the sanctions
Effective from 1 February 2016, the Sentencing Council’s definitive guideline ‘Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences’ has brought about a sea change in penalties for corporate manslaughter and Health and Safety offences with significantly increased fines.
The guideline sets out a sentencing decision sequence, beginning with an assessment of culpability and harm, and goes on to consider the financial means of the defendant and other relevant factors. Significantly, and unlike previous guidance, it introduces turnover-linked sentencing bands for fines.
For example, the bands for large organisations for corporate manslaughter range from £4.8 million to £20 million. The bands for large organisations that commit the most serious Health and Safety offences range from £2.6 million to £10 million. For very large organisations (ie those with a turnover very greatly exceeding £50 million), it may be necessary to move outside the suggested bands to achieve a proportionate sentence (the Court of Appeal having indicated that a fine in excess of £100 million is not out of the question).
An individual convicted of manslaughter will typically face a prison sentence of between two and ten years, as well as an unlimited fine. Individuals convicted of Health and Safety offences also face unlimited fines. The court can pass a custodial sentence, ranging from a sentence of conditional discharge through to imprisonment of up to two years.
Recent years have seen an increased appetite to crack down on all manner of corporate offending, notably with the introduction of ‘failure to prevent’ offences for bribery and tax fraud which have, to some degree at least, adopted the Health and Safety model. However, the Health and Safety sphere arguably remains the most comprehensively regulated. Notwithstanding the limitations of the corporate manslaughter offence, organisations that could reasonably have done more to prevent a fatal accident can expect prosecution and significant fines, while culpable individuals risk imprisonment.
Guy Bastable is Head of the Corporate Crime and Regulation Team at BCL Solicitors LLP. Tom McNeill is a Senior Associate at BCL Solicitors LLP